[Federal Register Volume 72, Number 68 (Tuesday, April 10, 2007)]
[Rules and Regulations]
[Pages 17807-17813]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: E7-6648]


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DEPARTMENT OF COMMERCE

National Oceanic and Atmospheric Administration

50 CFR Part 648

[Docket No. 061228342-7068-02; I.D. 122206A]
RIN 0648-AT66


Fisheries of the Northeastern United States; Atlantic Herring 
Fishery; 2007-2009 Specifications

AGENCY: National Marine Fisheries Service (NMFS), National Oceanic and 
Atmospheric Administration (NOAA), Commerce.

ACTION: Final rule.

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SUMMARY: NMFS announces final specifications for the 2007-2009 fishing 
years for the Atlantic herring (herring) fishery. The intent of this 
final rule is to conserve and manage the herring resource and provide 
for a sustainable fishery.

DATES: Effective May 10, 2007, through December 31, 2009.

ADDRESSES: Copies of supporting documents, including the Environmental 
Assessment, Regulatory Impact Review, Initial Regulatory Flexibility 
Analysis (EA/RIR/IRFA), and Essential Fish Habitat Assessment are 
available from Paul J. Howard, Executive Director, New England Fishery 
Management Council, 50 Water Street, Mill 2, Newburyport, MA 01950. The 
EA/RIR/IRFA is also accessible via the Internet at http://www.nero.gov. 
NMFS prepared a Final Final Regulatory Flexibility Analysis (FRFA), a 
summary of which is contained in the Classification section of the 
preamble of this final rule. Copies of the FRFA and the Small Entity 
Compliance Guide are available from Patricia A. Kurkul, Regional 
Administrator, Northeast Region, National Marine Fisheries Service, One 
Blackburn Drive, Gloucester, MA 01930-2298.

FOR FURTHER INFORMATION CONTACT: Eric Jay Dolin, Fishery Policy 
Analyst, 978-281-9259, e-mail at <a href="/cdn-cgi/l/email-protection#c2a7b0aba1eca6adaeabac82acada3a3eca5adb4"><span class="__cf_email__" data-cfemail="a4c1d6cdc78ac0cbc8cdcae4cacbc5c58ac3cbd2">[email protected]</span></a>, fax at 978-281-
9135.

SUPPLEMENTARY INFORMATION:

Background

    Proposed 2007-2009 specifications were published on January 10, 
2007 (72 FR 1206 ), with public comment accepted through February 9, 
2007. These final specifications are unchanged from those that were 
proposed. A complete discussion of the

[[Page 17808]]

development of the specifications appears in the preamble to the 
proposed rule and is not repeated here.

2007-2009 Final Initial Specifications

    The following specifications are established by this action: 
Allowable biological catch (ABC), optimum yield (OY), domestic annual 
harvest (DAH), domestic annual processing (DAP), total foreign 
processing (JVPt), joint venture processing (JVP), internal waters 
processing (IWP), U.S. at-sea processing (USAP), border transfer (BT), 
total allowable level of foreign fishing (TALFF), and total allowable 
catch (TAC) for each management area and subarea.

                Table 1. Specifications and Area TACs for the 2007-2009 Atlantic Herring Fishery
----------------------------------------------------------------------------------------------------------------
          Specification            2007 Allocation (mt)                 2008-2009 Allocation (mt)
----------------------------------------------------------------------------------------------------------------
ABC                               194,000                194,000
----------------------------------------------------------------------------------------------------------------
OY                                145,000                145,000
----------------------------------------------------------------------------------------------------------------
DAH                               145,000                145,000
----------------------------------------------------------------------------------------------------------------
DAP                               141,000                141,000
----------------------------------------------------------------------------------------------------------------
JVPt                              0                      0
----------------------------------------------------------------------------------------------------------------
JVP                               0                      0
----------------------------------------------------------------------------------------------------------------
IWP                               0                      0
----------------------------------------------------------------------------------------------------------------
USAP                              20,000                 20,000
                                  (Areas 2 and 3 only)   (Areas 2 and 3 only)
----------------------------------------------------------------------------------------------------------------
BT                                4,000                  4,000
----------------------------------------------------------------------------------------------------------------
TALFF                             0                      0
----------------------------------------------------------------------------------------------------------------
Reserve                           0                      0
----------------------------------------------------------------------------------------------------------------
TAC - Area 1A                     50,000                 45,000
                                  [48,500 fishery;       [43,650 fishery; 1,350 RSA]
                                   1,500 RSA]            (January 1 - May 31, landings cannot exceed 5,000)
                                  (January 1 - May 31,
                                   landings cannot
                                   exceed 5,000)
----------------------------------------------------------------------------------------------------------------
TAC - Area 1B                     10,000                 10,000
                                  [9,700 fishery; 300    [9,700 fishery; 300 RSA]
                                   RSA]
----------------------------------------------------------------------------------------------------------------
TAC - Area 2                      30,000                 30,000
                                  [29,100 fishery; 900   [29,100 fishery; 900 RSA]
                                   RSA]                  (No Reserve)
                                  (No Reserve)
----------------------------------------------------------------------------------------------------------------
TAC - Area 3                      55,000                 60,000
                                  [53,350 fishery;       [58,200 fishery; 1,800 RSA]
                                   1,650 RSA]
----------------------------------------------------------------------------------------------------------------
Research Set Aside                3 percent from each    3 percent from each area TAC
                                   area TAC              (2008 and 2009 FY only)
                                  (2008 and 2009 FY
                                   only)
----------------------------------------------------------------------------------------------------------------

Comments and Responses

    There were 460 comments received. Commenters included the American 
Pelagic Association; Cape Seafoods; Center for Oceanic Research and 
Education; Conservation Law Foundation; Garden State Seafood 
Association; Bumblebee Seafoods/Stinson Seafood; Maine Department of 
Marine Resources; Mid-Atlantic Fishery Management Council; Northern 
Pelagic Group, LLC; Ocean Conservancy; and 451 individuals and vessel 
owners.
    Comment 1: Three organizations and 448 individuals support the 
proposed rule, especially NMFS's decision to reduce the Area 1A TAC to 
45,000 mt in 2008 and 2009.
    Response: This action is unchanged from the proposed rule.
    Comment 2: Two organizations and three vessel owners opposed the 
Council's recommendation to reduce the Area 1A TAC to 50,000 mt for 
2007-2009, and strongly opposed NMFS's further reduction of the Area 1A 
TAC to 45,000 mt for 2008 and 2009. They argue that the Council's 
recommendation was unnecessarily restrictive, in light of the stock's 
status. They further argue that NMFS should not have relied on the Plan 
Development Team's (PDT's) risk assessment in making its decision to 
further reduce the Area 1A TAC to 45,000 mt because it was not peer-
reviewed, and was overly conservative. They disagreed that the 
Councils' and NMFS's concern about the retrospective pattern in the 
stock assessment is an appropriate reason to reduce the Area 1A TAC. 
They argued that the 29,000-mt buffer between ABC and OY was intended 
to account for the retrospective pattern and that it is, therefore, 
scientifically inappropriate to further reduce the Area 1A TAC. The 
commenters argue that the Council's specifications document pointed out 
that trawl survey results are highly variable, and that no trends are 
apparent from the most recent years of the survey across all strata. 
The commenters state that encounter rates are increasing, rather than 
declining, and a broader size distribution is evident; and that both of 
these trends indicate a healthy resource. One organization stated that 
it is misleading for NMFS to state that there

[[Page 17809]]

is considerable overlap between the inshore stock component and Area 
1A.
    One organization supported the reduction of the Area 1A TAC to 
50,000 mt, but not to 45,000 mt in 2008 and 2009. They argue that the 
retrospective pattern described by the Transboundary Resource 
Assessment Committee (TRAC) applies to the stock as a whole, and not 
individual stock components, and that the 29,000-mt buffer between ABC 
and OY addresses the issue. They stated that the reduction in the Area 
1A TAC to 45,000 mt and commensurate increase in the Area 3 TAC does 
not account for the retrospective pattern, because it maintains OY at 
the same level. They also argued that only the NMFS fall survey shows a 
decline in abundance and biomass, and the other surveys are either 
increasing or variable and stable. They noted that the PDT suggested 
that encounter rates may be a better indicator of stock status for 
herring, and that the Northeast Fisheries Science Center (NEFSC) fall 
surveys are not showing a decline in the encounter rates, and the 
Massachusetts inshore survey is showing an increase in encounter rates.
    One organization opposed the reduction of Area 1A TAC, but provided 
no additional rationale. One vessel owner argued that the industry was 
not allowed to participate in the Advisory Panel's decisionmaking 
during the specifications-setting process.
    Response: The herring stock is in good shape. However, both the 
Council and NMFS agree that, while the overall stock is healthy, there 
is a clear need to be precautionary with the inshore component of the 
stock. This is directly related to the establishment of the Area 1A TAC 
because, contrary to some comments, there is substantial overlap 
between the inshore stock component and Area 1A. The inshore component, 
at different times of year, is distributed throughout Areas 1A, 1B, and 
2. Based on the stock mixing ratios employed in the specifications 
document (and in the FMP), it is reasonable to state that there is a 
considerable amount of overlap between the inshore stock component and 
Area 1A. The specifications document estimates that, in the summer, 50 
percent of the catch from Area 1A comes from the inshore component. In 
the winter, 100 percent of the catch in Area 1A, and 20 percent of the 
catch in Area 2, is assumed to come from the inshore component of the 
resource. Removals from Area 1B are assumed to be composed of 30 
percent of the inshore component at all times of the year.
    Several aspects of the specifications analyses provided a strong 
basis for NMFS to enact the Area 1A TACs specified in this action. 
Three elements in particular contributed to NMFS's determination that 
the 2008-2009 TACs should be set lower than recommended by the Council.
    The Council's Scientific and Statistical Committee (SSC) met in 
2003 to consider the status of the herring stock and found, among other 
things, that ``no severe declines in the stock complex should be 
expected by maintaining current levels of catches over the short-term; 
however, the current concentration of harvest in the inshore Gulf of 
Maine is of concern and may be excessive.'' Thus, NMFS concluded that 
the issue is not whether there is a need for more caution when 
establishing the Area 1A TAC, but rather, how much caution is 
necessary.
    Both the Council and NMFS agreed that the available data and 
concerns warranted a significant reduction in the Area 1A TAC over the 
next 3 years. NMFS, however, concluded that the Council's proposal, to 
set the Area 1A TAC at 50,000 mt, did not go far enough to protect the 
stock in Area 1A.
    NMFS also concluded that the retrospective pattern in the stock 
assessment, which overestimates biomass and underestimates fishing 
mortality in the terminal year of the assessment, argues for caution. 
NMFS concluded that for the stock as a whole, the buffer of 29,000 mt 
between ABC (maximum OY) and OY specified in this action would help 
ensure that adequate spawning stock biomass (SSB) is available to 
produce strong recruitment in the future. However, the retrospective 
pattern indicates that, as more data are collected and analyzed, the 
stock, including the inshore stock component, will be found to be not 
as robust as current data imply.
    Finally, the PDT's risk assessment provides a useful tool for 
evaluating TAC alternatives. The risk assessment is a tool that the 
Council asked the PDT to provide, and it was presented and debated by 
the PDT members, the Herring Advisory Panel (AP), and the Herring 
Committee, as well as the Council. According to the risk assessment, 
setting the Area 1A TAC at 45,000 mt for 2008-2009 will provide a 
slightly improved chance of producing exploitation rates that are more 
consistent with Fmsy for the stock component, within a range of 
realistic stock mixing ratios. Therefore, NMFS finds that the SSC 
advice, the retrospective pattern in the stock assessment, and the 
conclusions of the PDT's risk assessment combine to make a sound case 
for specifying the Area 1A TAC at 45,000 mt in fishing years 2008 and 
2009.
    The commenters correctly characterize the variability of the trawl 
survey data and encounter rates. While NMFS acknowledges these points, 
it does not conclude that they overcome the concerns noted above. More 
specifically, although some of the encounter rates do not indicate a 
decline in stock status, they are just one of the indicators that the 
Council and NMFS needs to rely on in determining the appropriate levels 
for the various TACs. As mentioned above, taken together, the SSCs 
advice, the significant retrospective pattern in the stock assessment, 
and the PDT's risk assessment, even in the face of some positive or 
stable encounter rates, justify the precautionary approach being taken 
in this rule.
    NMFS does not share the commenters' concerns about the use of the 
PDT's risk assessment. PDTs are established by the Council specifically 
to offer technical advice that will assist in making sound fishery 
management decisions. The current process for obtaining the PDT's 
advice does not include an additional formal peer review of that 
advice. A certain amount of informal peer review is built into the PDT 
process by virtue of its membership and the debates that take place at 
PDT meetings, the Council's committee meetings, and Council meetings. 
An additional layer of informal peer review takes place within NMFS, 
when the specifications package, including the PDT's products, are 
reviewed by NMFS staff.
    The perception that the industry was not allowed to participate in 
the AP's deliberations is not accurate. Not only is the AP comprised of 
industry members, but all of its meetings were public meetings, for 
which public notice was provided. At those meetings a variety of 
industry members contributed their thoughts and ideas to the process, 
although not all of their suggestions were ultimately adopted.
    Comment 3: Two organizations argued that the reduction of the Area 
1A TAC to 45,000 mt is not justified. They also argued that the PDT 
analysis was presented to the Council at the last minute and that 
participants in the fishery did not have adequate opportunity to review 
and comment on it. One commenter argued that the use of this new 
analysis appears contrary to the recent Congressional reauthorization 
of the Magnuson-Stevens Fishery Conservation and Management Act 
(Magnuson-Stevens Act), which specifies in section 302(g) that, ``The 
Secretary and each Council may

[[Page 17810]]

establish a peer review process for that Council for scientific 
information used to advise the Council about the conservation and 
management of the fishery.'' Finally, this commenter argued that the 
assumption in the specifications that the New Brunswick (NB) weir 
fishery will catch 20,000 mt annually is an overestimate and, 
therefore, it serves to provide an additional level of caution in the 
specifications.
    Response: The justification for setting the Area 1A TAC at 45,000 
mt and the concerns about the PDT's risk assessment are addressed in 
the response to Comment 2. NMFS notes that the Council process provided 
several opportunities for public comment, including comment on the risk 
assessment.
    The new Magnuson-Stevens Act requirement is not retroactively 
applicable to the process the Council followed to develop these herring 
specifications.
    The Council adopted the estimate that the NB weir fishery will land 
20,000 mt annually after public debate. Though in recent years landings 
by this fishery have not attained 20,000 mt, the Council and NMFS 
concluded it is a reasonable estimate. Historical catches in the NB 
weir fishery were much higher than those in recent years, and exceeded 
20,000 mt in many years prior to 1995. Landings of herring in the NB 
weir fishery average 22,475 mt for 1978-2005, despite the fact that the 
2005 landings are currently estimated to have been about 13,000 mt.
    Comment 4: Five vessel owners pointed out that there is no stock 
assessment for the inshore component and, therefore, the target and 
threshold fishing mortality rates for the inshore stock component 
remain uncertain. Because of this, the owners argue that reducing the 
Area 1A TAC based on a concern that the Council's recommendations for 
2008 and 2009 would be only marginally successful at producing an 
exploitation rate consistent with F<INF>msy</INF> is not justified, 
because the F<INF>msy</INF> for the inshore component remains 
uncertain. Furthermore, these owners pointed out that, although the 
TRAC assessment estimated that the inshore component of the stock 
represents 18 percent of the total stock biomass, the TRAC assessment 
does not provide guidance on the TAC allocations by management area or 
the mixing rates between stock components. The owners find the use of 
the 18 percent value to be problematic, and cast doubt on the 
usefulness of the PDT's risk assessment because it is not peer-
reviewed. The risk assessment should not, they contend, be used as a 
justification for draconian cuts.
    Response: The commenters are correct that the stock assessment does 
not provide specific fishing mortality target and threshold rates for 
the inshore stock component or the specification of management area 
TACs. However, NMFS concluded that it is appropriate to use the risk 
assessment and the TRAC estimate that the inshore stock component 
represents 18 percent of the total biomass, for reasons outlined in 
detail in the response to Comment 2. The stock mixing ratios used in 
the risk assessment are, as the specifications document points out, 
supported by the best available scientific information.
    Comment 5: Five organizations argued that the proposed reallocation 
of 5,000 mt from Area 1A to Area 3 should, instead, be a reallocation 
of the same amount into a reserve for Area 2. The rationale offered is 
that a higher percentage of the Area 2 TAC has been taken in recent 
years than of the Area 3 TAC. The establishment of such a reserve 
would, the commenters argue, increase the amount of herring available 
to the Atlantic mackerel fishery, which has an incidental catch of 
herring. This would reduce the likelihood of a closure of the herring 
fishery in Area 2. The commenters believe that a herring closure would 
de facto close the mackerel fishery in that area because vessels would 
not fish in the area for mackerel if they could not also retain more 
than 2,000 lb (907.2 kg) of herring.
    Response: There are two reasons for transferring the 5,000 mt from 
Area 1A to Area 3. First, since Area 3 fish are assumed to come 
entirely from the offshore component of the stock, the addition of 
5,000 mt to that Area's TAC will not impact the status of the inshore 
component. Second, this reallocation will increase opportunities for 
the fleet to fish for herring in Area 3 and, therefore, support one of 
the FMP's goals, which is to provide for the orderly development of the 
offshore herring fishery. In contrast, because of mixing of the 
subcomponents of the stock, a shift of 5,000 mt from Area 1A to Area 2 
would still allow the fishery to harvest from the inshore stock 
component.
    On a practical level, the Area 2 TAC has never been fully 
harvested. In 2006, roughly 22,000 mt of herring was landed from this 
area, while in the 4 prior years, landings from the area ranged from 
11,000 mt to 16,000 mt. In light of this history, the 30,000 mt 
allocated to Area 2 would appear unlikely to constrain the mackerel 
fishery. The Council has the option of reviewing information relating 
to the herring stock and fishery in 2007 and revising the Area 2 TAC 
for 2008-2009, if warranted.
    Comment 6: Two organizations urged that a portion of the DAH be 
set-aside for use in value-added food grade products, and that such an 
allocation would be consistent with the allocation of 20,000 mt for 
USAP. These commenters also urged NMFS to establish three different 
fishing seasons within Area 1A, and to apportion the TAC among those 
seasons to extend the fishing season in Area 1A, achieve OY, and more 
effectively protect pre-spawning herring.
    Response: These suggestions would require amendment of the Herring 
FMP, which defines the allocations that must be recommended by the 
Council and enacted by NMFS, and are therefore outside the scope, 
purpose, and authority of this action. Such changes may be pursued 
through the Council process.
    Comment 7: Two organizations argued that the Council's decision to 
review the new survey data during 2007 and determine whether 
adjustments should be made to the specifications for the 2008 and 2009 
fishing years was sufficiently precautionary and should be allowed to 
proceed. One organization believed that NMFS's revision of the 
allocations for 2008-2009 precluded the Council from conducting a 
review of the fishery during the 3-year specification period.
    Response: NMFS's decision to reduce the Area 1A TAC to 45,000 mt 
for the 2008 and 2009 fishing years has no bearing on the review 
process that the Council stated that it plans to conduct during 2007. 
That review is expected to take place, and the Council is at liberty to 
recommend changes to the specifications for 2008 and/or 2009 based on 
its review, if warranted.
    Comment 8: Five vessel owners supported the implementation of the 
status quo specifications for the herring fishery, which would set OY 
at 150,000 mt, the Area 1A TAC at 60,000 mt, and the Area 3 TAC at 
50,000 mt. They argue that the recent landings levels of around 100,000 
mt are sustainable. They note that the TRAC report supports this view, 
and that the PDT analysis indicates that all of the alternatives, 
including the status quo, are projected to result in removals of the 
inshore component that are less than the historical (1995-2006) 
removals within a reasonable range of stock mixing assumptions.
    Response: The commenters are correct in noting that the TRAC 
concluded that removals at current levels (around 100,000 mt per year 
for the past 15 years) are sustainable. They are also

[[Page 17811]]

correct that the PDT's risk assessment indicated that setting the TACs 
at the status quo level was projected to result in removals from the 
inshore stock component that are less than historical removals for the 
period 1995-2005, during the winter (January-March; August-December). 
However, the PDT's risk assessment was not as clear cut for the summer 
period (April-July), where it showed that the status quo TACs would 
generate removals that would be at or below historical removals in 
about 50 percent of the possible scenarios. Both the Council's 
recommended TACs and the TACs established by this action would be more 
risk-averse than the status quo during the summer period, when a large 
amount of the Area 1A catch is taken.
    The commenters failed to note that there was a second part to the 
PDT's risk assessment, which evaluated the success of proposed TAC 
alternatives in achieving an exploitation rate that equates to 
F<INF>msy</INF> for the herring stock. As noted in the response to 
Comment 2, this aspect of the risk assessment was one of the reasons 
that both the Council and NMFS concluded that it was appropriate to 
make a significant reduction in the Area 1A TAC to reduce the risk of 
overfishing the inshore stock component.
    Comment 9: One organization argued that, based on the TRAC results 
and reasonable assumptions about stock component mixing rates, the Area 
1A TAC should be set between 35,000-42,000 mt. Furthermore, this 
organization does not support the addition of 5,000 mt to the Area 3 
TAC, and argues that, at most, the Area 3 TAC should be 55,000 mt. The 
commenter argues that, because the natural mortality rate used by the 
TRAC in its assessment model is not accurate and might significantly 
underestimate natural mortality, NMFS has not accurately estimated the 
amount of herring that can be safely removed from the ecosystem and 
that, as a result, NMFS should be more precautionary in setting the 
herring specifications.
    Response: The PDT stated that if it may be possible to apply a 
fishing mortality rate to an average biomass for the inshore stock 
component (assuming that it comprises 18 percent of total biomass), and 
estimate a TAC specifically for the inshore stock component. Using this 
approach would likely result in a TAC for the inshore stock component 
of about 35,000 mt - 42,000 mt. However, the PDT also stated that a TAC 
for the inshore stock component does not equate to a TAC for Area 1A, 
as fish from both the inshore and offshore component are caught in 
Areas 1A, 1B, and 2.
    Regarding the commenter's contention that the natural mortality 
rate used in the TRAC assessment is not accurate, the TRAC investigated 
values for natural mortality other than 0.2, but deemed that 0.2 was 
the appropriate value to use in the stock assessment. The peer-reviewed 
TRAC results constitute the best available scientific information on 
this point.
    NMFS notes that Fmsy for the stock was estimated at 0.31 by the 
TRAC. The analysis of the stockwide F associated with the 
specifications estimates F's of 0.18 in 2007; 0.197 in 2008, and 0.221 
in 2009. NMFS concludes that these fishing mortality estimates are 
sufficiently precautionary.
    Comment 10: Five vessel owners argued that the perceived declines 
in the inshore component, based on the incorporation of recent data 
(2004 and 2005) from the NMFS trawl survey, appears to be a rush to 
judgment. They pointed out that, in 2006, herring fishermen reported 
very high inshore biomass and that, based on a personal communication 
with NEFSC staff, the fall 2006 survey results indicate a rebound to 
previous levels.
    Response: The PDT noted the impact that recent data has on overall 
trends for the inshore component; however it also placed that data 
within its proper context, stating that, ``While data specific to the 
inshore component of the stock is limited and the Herring PDT cannot 
make a status determination based on bottom trawl indices alone, a 
change in the direction of the trend line is an important 
consideration.'' The Council's 2007 review will consider any upated 
survey data and, if the results indicate a change in the apparent trend 
of recent years, then it could result in recommendations for TAC 
adjustments in 2008-2009. While NMFS took recent trawl survey 
information into account in taking this action, there were several 
factors that led NMFS to specify the Area 1A TAC at 45,000 mt for 2008-
2009, as discussed in the response to Comment 2.
    Comment 11: Five vessel owners argued that the 10,000-15,000 mt 
reduction of the Area 1A TAC will have greater economic impacts than 
the revenue loss estimates of $136,350-204,500 per vessel for purse 
seine vessels. They contend that it is incorrect to assume that the 
reduced catch in Area 1A can be made up from Area 3. They explain that 
vessel size and weather make it difficult for their vessels to work 
offshore and make up for reduced landings from Area 1A.
    Response: The analysis of the economic impacts of the proposed TACs 
takes into account the same points made by the commenter. The specific 
per-vessel revenue impacts cited by the commenter are part of the 
analysis of revenue impacts on vessels that have harvested herring from 
Area 1A in the past, and are likely to qualify for the limited access 
permit established by Amendment 1. The analysis presumes that these 
vessels will continue to harvest the same proportion of the Area 1A TAC 
as in the past. The analysis notes that there are several things that 
could affect this assumption, notably that the reduced TAC may create 
an incentive for vessel owners to compete more aggressively for the 
reduced Area 1A TAC, thus altering the proportion of fish available to 
past participants. The analysis also notes that, while there are 
opportunities to harvest fish from other management areas to compensate 
for the reduction in Area 1A, this may not be possible for all vessels. 
It notes that there are a number of reasons it may not be possible for 
all vessels to fish in other areas, particularly offshore Areas 2 and 
3, because the size of some vessels creates safety concerns, and 
because there are higher operating costs associated with longer trips, 
notably the costs associated with additional steaming time and 
associated fuel costs.
    Comment 12: One organization argued that, because of the mixing 
between offshore and inshore components during the spring, only the 
fall surveys should be considered as an indicator of the status of the 
inshore stock component. It also argued that a number of the survey 
results, as well as observed encounter rates, indicate that the health 
of the stock is not in decline.
    Response: Overall, the herring stock is in good shape, but for 
reasons outlined in the response to Comment 2 there are concerns about 
the inshore stock component that resulted in the reduction of the Area 
1A TAC.

Classification

    This action is authorized by 50 CFR part 648 and has been 
determined to be not significant for purposes of Executive Order 12866.
    A FRFA was prepared. The FRFA incorporates the IRFA, a summary of 
the signficant issues raised by the public comments in response to the 
IRFA, NMFS responses to those comments, and a summary of the analyses 
completed to support the action. A copy of the analyses is available 
from NMFS (see ADDRESSES).
    A description of the reasons for this action, the objectives of 
this action, and the legal basis for this final rule is found

[[Page 17812]]

in the preambles to the proposed rule and this final rule and is not 
repeated here.

Statement of Need for this Action

    The purpose of this action is to establish specifications to 
conserve and manage the herring resource for the period 2007-2009, as 
required by the FMP.

A Summary of the Significant Issues Raised by the Public Comments in 
Response to the IRFA, a Summary of the Assessment of the Agency of Such 
Issues, and a Statement of Any Changes Made in the Proposed Rule as a 
Result of Such Comments

    NMFS received 460 comments on the proposed specifications. Only one 
comment was specific to the IRFA. Comment 12 outlines concerns 
expressed by five vessel owners that the analysis of the Area 1A TACs 
underestimated the economic impacts they would experience due to the 
reductions in the allocation for the area. NMFS' assessment of the 
issues raised by this comment is contained in the preamble and not 
repeated here. The comment did not result in any changes to the Area 1A 
TAC, which was reduced for biological reasons.

Description and Estimate of Number of Small Entities to Which the Rule 
Will Apply

    During the 2005 fishing year, 143 vessels landed herring, 33 of 
which averaged more than 2,000 lb ( 907 kg) of herring per trip. The 
Small Business Administration's size standard for small commercial 
fishing entities is $4 million in gross sales. Thus, all the entities 
participating in this fishery are considered small entities, as defined 
in section 601 of the RFA. Therefore, there are no disproportionate 
economic impacts between large and small entities.

Description of Projected Reporting, Recordkeeping, and Other Compliance 
Requirements

    This action does not contain any new collection-of-information, 
reporting, recordkeeping, or other compliance requirements.

Description of the Steps the Agency Has Taken to Minimize the 
Significant Economic Impact on Small Entities Consistent with the 
Stated Objective of Applicable Statutes, including a Statement of the 
Factual, Policy, and Legal Reasons for Selecting the Alternative 
Adopted in the Final Rule and Why Each of the Other Significant 
Alternatives to the Rule Considered by the Agency which Affect the 
Impact on Small Entities was Rejected

    The economic impacts of this action were assessed by the Council 
and NMFS in an analysis that compares the alternatives considered to 
the herring landings made in 2005, the most recent year for which 
complete data are available. From a fishery-wide perspective, these 
specifications are not expected to produce a negative economic impact 
to vessels prosecuting the fishery because it allows for landings 
levels that are significantly higher than the landings in recent years. 
The 2007-2009 specifications should allow for incremental growth in the 
industry, while appropriately addressing biological concerns. However, 
because of the allocation of the management area TACs, and the 
reduction in the Area 1A TAC in particular, these specifications could 
have a negative impact on various industry participants, despite the 
fact that overall landings levels could be higher than in recent years.
    The specification of OY and DAH is 145,000 mt for 2007-2009. While 
higher levels of OY were considered (150,000 mt and 170,000 mt) the OY 
of 145,000 mt will allow an annual increase of up to 51,610 mt in 
herring landings compared to the 93,390 mt landed in 2005. This will 
generate $10.4 million in revenues, based on an average price (in 2005) 
of $202/mt. Therefore, there are no negative economic impacts 
associated with the specification of OY in this action. Individual 
vessels could increase their revenues under the proposed 2007-2009 
specifications, depending on the number of vessels participating in the 
fishery, which will become a limited access fishery with the 
implementation of Amendment 1 to the FMP on June 1, 2007.
    Several other specifications established by this action would also 
allow an increase in revenue to industry participants when compared to 
the 2005 landings. These include DAH and DAP, which are specified at 
145,000 mt and 141,000 mt, respectively; USAP, which is specified at 
20,000 mt; the Area 1B TAC, which is specified at 10,000 mt; the Area 2 
TAC, which is specified at 30,000 mt; and the Area 3 TAC, which is 
specified at 55,000 mt in 2007 and 60,000 mt in 2008-2009. In each 
instance, there are no negative economic impacts associated with these 
specifications because they would allow industry participants to 
harvest and/or process more herring than in 2005. There are no 
potential economic impacts associated with the allocation for JVPt of 
zero, because it is unchanged from 2005.
    The only specification that could constrain the industry when 
compared to landings and revenue in 2005 is reduction of the Area 1A 
TAC to 50,000 mt in 2007, and 45,000 mt in 2008 and 2009. The impacts 
of these reductions were analyzed for the purse seine fleet, the single 
midwater trawl fleet, and the paired midwater trawl fleet.
    In 2005, the currently active purse seine fleet caught 27 percent 
of the Area 1A TAC. With a 10,000-15,000-mt reduction in the Area 1A 
TAC, if the proportion of the herring catch by the purse seine fleet 
remains the same and the decrease in the Area 1A TAC cannot be made up 
from fishing in other areas, there would be a 2,700-mt loss in catch 
under this action in 2007, and a 4,050-mt loss in catch in 2008 and 
2009. Using the 2005 average price of herring of $202 per metric ton, 
this loss in catch would be worth $545,400 and $818,000, respectively, 
across the sector (there are four vessels in the currently active purse 
seine fleet). To make up for such a loss, these vessels would have to 
either increase their proportion of the herring catch in Area 1A 
relative to midwater trawlers, or move to other areas. There were no 
landings from Area 3 by these purse seine vessels in 2005, likely 
reflecting the fact that the vessels are too small to fish in these 
offshore areas. Moving offshore would also entail additional operating 
costs because the trips would be longer.
    The impact of the 10,000-15,000-mt decrease in the Area 1A TAC on 
the single midwater trawl fleet is difficult to predict, because the 
Purse Seine/Fixed Gear (PS/FG) only area established by Amendment 1 
will eliminate single midwater trawl vessels from Area 1A during the 
most productive part of the Area 1A fishery (June through September). 
The establishment of a PS/FG only area might intensify the race to fish 
in Area 1A, as midwater trawl vessels (single and paired) may try to 
catch more fish from the area prior to the closure to trawling on June 
1.
    If herring are plentiful in Area 1A during the spring (Area 1A 
catches increase in May, historically), the single midwater trawlers 
may be able to maintain their historical proportion of the Area 1A TAC. 
However, it is likely

[[Page 17813]]

that purse seine vessels and midwater pair trawl vessels would also 
participate in the pre-June race in order to keep their landings on par 
with previous years. In addition, single midwater trawl vessels might 
convert to purse seine gear in order to fish in Area 1A in the summer.
    In 2005, the currently active single midwater trawl fleet caught 18 
percent of the Area 1A TAC. If the proportion of the herring catch by 
the single midwater trawl fleet remains the same, and the decrease in 
the Area 1A TAC cannot be made up from fishing in other areas, there 
would be a 1,800-mt loss in catch under this action during 2007, and a 
2,700-mt loss in catch in 2008 and 2009. Using the 2005 average price 
of herring of $202 per metric ton, this loss in catch would be worth 
$363,600 and $545,400, respectively, across the sector (there are four 
vessels that were active in Area 1A from 2003-2005 in the single 
midwater trawl fleet). To make up for such a loss, the single midwater 
trawl vessels would have to either increase their proportion of the 
herring catch in Area 1A relative to purse seine vessels, or move to 
other areas. Moving to offshore areas may be problematic for two of the 
four single midwater trawl vessels, since these two are relatively 
smaller vessels and landed herring only from Area 1A during 2003 
through 2005. The other two vessels are somewhat larger and have Area 3 
catch history, so their loss of Area 1A catch may be mitigated by their 
ability to fish in Area 3. If the single midwater trawl vessels make up 
their catch in Areas 2 and 3, the vessel operating cost will increase 
because the trips will be longer.
    With decreases in the Area 1A TAC of 10,000 mt to 15,000 mt under 
this action, the impact on the midwater pair trawl fleet could also be 
large. It is difficult to predict what the impact will be on the 
midwater pair trawl fleet, because these vessels will also be excluded 
from Area 1A for the period June-September due to the PS/FG only 
measure. In 2005, the currently active pair trawl fleet caught 55 
percent of the Area 1A TAC. If the proportion of the herring catch by 
the pair trawl fleet remains the same and the decrease in the Area 1A 
TAC cannot be made up from fishing in other areas, there would be a 
5,500-mt loss in catch under this action in 2007, and a 8,250-mt loss 
in 2008 and 2009. Using the 2005 average price of herring of $202 per 
metric ton, this catch is worth $1,111,000 and $1,666,500 respectively, 
across the sector (there are 12 vessels in the pair trawl fleet that 
were active from 2003-2005). To make up for such a loss, pair trawl 
vessels would have to either increase their proportion of the herring 
catch in Area 1A or move to other areas. All pair trawl vessels have 
Area 3 catch history, so their loss of Area 1A catch may be mitigated 
by their ability to fish in Area 3. If the pair trawl vessels make up 
their catch in Areas 2 and 3, the vessel operating cost will increase 
because the trips would be longer.
    The 10,000-mt to 15,000-mt reduction in TAC in Area 1A may cause 
participants using all 3 gear types to increase their fishing activity 
in Area 1B. The Area 1B TAC has not been reached every year, and only 
60 percent was harvested in 2005. Since Area 1B is farther from shore 
than Area 1A, vessel operating costs would increase because trips would 
be longer. Harvesting in Area 1B will only provide limited relief for 
vessels impacted by the reduction in the Area 1A TAC since the TAC is 
limited to 10,000 mt.
    There were seven alternatives considered. Three of the alternatives 
would have set the Area 1A TAC at 60,000 mt. They were rejected because 
the biological concerns about the inshore herring stock component 
require a significant reduction in harvest within Area 1A. More 
specifically, NMFS concluded that the SSC's advice, the retrospective 
pattern in the stock assessment, and the conclusions of the PDT's risk 
assessment combine to make a sound case for being precautionary about 
protecting the inshore component and for specifying the Area 1A TAC at 
45,000 mt.
    One alternative would have set the Area 1A TAC at 50,000 mt for all 
three years. This was rejected for the reasons cited above; namely, 
that the SSC's advice, the retrospective pattern in the stock 
assessment, and the conclusions of the PDT's risk assessment combine to 
make a sound case for being precautionary about protecting the inshore 
component and for specifying the Area 1A TAC at 45,000 mt.
    Two of the alternatives would have reduced the Area 1A TAC to 
45,000 mt for all three years. These were rejected because NMFS 
believed that it is sufficient to achieve biological objectives to 
implement the 45,000 mt TAC for 2008-2009, and establish the 2007 TAC 
at 50,000 mt, consistent with action taken by the states under the 
Atlantic States Marine Fisheries Commission's Interstate Fisheries 
Management Plan for Atlantic Sea Herring. The preferred alternative was 
selected because the SSC's advice, the retrospective pattern in the 
stock assessment, and the conclusions of the PDT's risk assessment 
combine to make a sound case for specifying the Area 1A TAC at 45,000 
mt in fishing years 2008 and 2009.

Small Entity Compliance Guide

    Section 212 of the Small Business Regulatory Enforcement Fairness 
Act of 1996 states that, for each rule, or group of related rules, for 
which an agency is required to prepare a FRFA, the agency shall publish 
one or more guides to assist small entities in complying with the rule 
and shall designate such publications as ``small entity compliance 
guides.'' The agency shall explain the actions a small entity is 
required to take to comply with a rule or group of rules. As part of 
this rulemaking process, a small entity compliance guide will be sent 
to all holders of permits issued for the herring fishery. In addition, 
copies of this final rule and guide (i.e., permit holder letter) are 
available from the Regional Administrator (see ADDRESSES) and may be 
found at the following web site: http://www.nero.noaa.gov.

    Authority: 16 U.S.C. 1801 et seq.

    Dated: April 2, 2007.
John Oliver,
Deputy Assistant Administrator for Operations, National Marine 
Fisheries Service.
[FR Doc. E7-6648 Filed 4-9-07; 8:45 am]
BILLING CODE 3510-22-S


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